This post is part of a continuing series on legal issues important to correctional nurses. Find other topics in the series here.

From my case files:

A nurse hears a man down code called overhead while returning from providing sick call in one of the housing units. When she arrives at the scene she sees that the inmate is sprawled out on the cell floor and appears unconscious. The housing officer tells her the inmate is breathing so she runs back to the medical unit to get oxygen and emergency supplies. When she reaches the medical unit she tells another nurse to activate emergency medical services as the patient will definitely be heading to the hospital. The sick call nurse returns to the housing unit with the emergency supplies, provides standard emergency treatment, and, some minutes later, assists the emergency personnel to prepare the patient for transport. Three months later she is named in a malpractice lawsuit.

As professional health care providers, nurses are held to standards of practice related to our licensure. Malpractice is claimed when a professional acts or fails to act to the level of their professional education and skill. This is also referred to as professional negligence as negligence, itself, is a general term for carelessness or a deviation from actions that would be taken by a reasonable person in the same situation.

Components of a Malpractice Claim

Six elements must be present in a malpractice claim to prevail. All factors must be convincingly presented for the nurse to be deemed liable in a malpractice case.

Duty owed the patient: Nurses owe a duty of care based on licensure and role at the time of the claim. A nurse-patient relationship is established by a nurse accepting an assignment involving the patient and continues until closure of that assignment. That closure can come when the patient is handed over to another qualified individual, as in the case of infirmary care, or when the patient is released to personal self-care as at the conclusion of a sick call episode or release from the facility. That a duty is owed in a particular circumstance is fairly easy to establish. If a nurse is in the midst of a shift and working under a job description when presented with a patient such as in our case above, the nurse owes a duty to the patient to respond as any prudent nurse would in a similar situation.

The nature of the duty is established by the circumstances of the incident. This can be less clear and, in a court case, often requires the testimony of expert witnesses of similar background. These expert witnesses base their testimony on practical experience in a similar setting but also on published standards. Standards for correctional nursing practice are published by the American Nurses Association and are structured around the nursing process. Expert witnesses may also rely on accreditation standards. In correctional settings, that would be the National Commission on Correctional Health Care Standards and the American Correctional Association Standards. Although voluntary, these standards lay out indicators of quality health care processes that may be in question in a legal claim. There are also some states that have specific state statutes and regulations that address minimum standards of care expected in the correctional setting.

Breach of the duty owed: Once duty is established, a breach of that duty then needs to be clearly presented. The groundwork has already been laid by the expert witness(es). A breach of duty relates to action or inaction that does not meet the expected standard of care for the situation. Duty owed can be established through various, often written, sources such as:

• Standing policy, procedures, protocols
• Emergency procedures
• National guidelines and standards

Foreseeability: A successful malpractice case must also establish that the nurse should have reasonably been able to foresee that harm would come. No one has a crystal ball to see into the future and some random harm can come from nurse actions. Foreseeability establishes that the injury could have been considered and steps taken to keep the patient from harm. In our case example, a nurse was called to an emergency man-down in a housing unit and was the only health care staff on the scene. Patient abandonment was alleged as the nurse did not assess the patient or provide immediate care before leaving the scene. A prudent nurse, it was claimed, would have stayed with the patient, rendering care while an unlicensed staff member brought the equipment. The plaintiff’s lawyer argued that the nurse should have foreseen that the patient would be harmed by her departure without any other healthcare provider left there to deliver care.

Causation: The case now moves to cause. Did the nurse’s breach of established duty directly cause the injury? Causation of an injury can be multi-faceted so narrowing down cause to the nurse’s action or inaction in breach of duty may be challenging. In this case, the patient suffered a hypoxic stroke, but would the outcome have been different if the nurse had repositioned the patient and provided rescue breathing? That would be for the plaintiff’s legal counsel to support through the use of medical experts with experience in a similar setting.

Injury: Physical injury must then be established. This, again, must be directly linked to the nurse’s breach of duty. There are some rare exceptions here, but injury must be quantifiably physical rather than merely psychological in nature. In the case above, the nurse’s abandonment must be established as the proximate cause of a physical injury to the patient. This patient was permanently disabled due to brain injury.

Damages: The final element of a malpractice allegation is damages incurred. This infers the level of the injury to the plaintiff caused by the nurse but damages can also be ascribed in a broader manner. There are three main categories of damages sought:

• Special damages (out-of-pocket): These are the primary damages of a malpractice case and are determined by actual economic loss such as lost wages, medical expenses, medications, or therapy. These damages can only be claimed with proof such as receipts and bills.
• General damages (noneconomic): These are less quantifiable damages such as pain and suffering or emotional distress. Although receipts or bills would not be available to establish this type of damage, the plaintiff much have some evidence to support the request.
• Punitive damages: Punitive damages are intended to add a punishment to the defendant. If a clinician lapse is particularly egregious or misconduct or tampering are discovered in the case, punitive damages may be high.

Although not part of the legal case, malpractice determinations are reportable and considered by State Licensing Boards for disciplinary action such as suspension or revocation of licensure.

In this particular case, settlement was reached before trial, as so often is the case. The plaintiff was awarded a large but undisclosed settlement. Was the nurse guilty of malpractice? What do you think?

Photo Credit:© Matthew Benoit – Fotolia.com